One of the most highly publicized and divisive school law issues of recent memory involves the accommodations public schools make for transgender youth. First, some definitions: “Gender identity” is a person’s internal sense of gender, which may be the same or different than the person’s assigned sex at birth, and may or may not be reflected in the person’s outward appearance. “Gender expression” is how a person presents that person’s gender to others, whether through behavior, dress, lifestyle, voice, mannerisms or body characteristics, which may be the same or different than the person’s assigned sex at birth. “Transgender” is a person’s expression of gender that is different than the person’s gender assigned at birth. A transgender person may or may not be taking medical or surgical measures to conform to the expression.
On May 13, 2016, the U.S. Department of Justice and the U.S. Department of Education issued joint guidance regarding their interpretation of Title IX, the federal civil rights law prohibiting sex discrimination, as it applies to transgender students. The letter summarized the federal agencies’ position related to a school’s Title IX obligations to transgender students and explained how the Education and Justice departments would evaluate a school’s compliance with its Title IX obligations.
While the guidance made a big media splash at that time, it was not a surprise as it had been the DOE’s position for many years. In December 2014, then-U.S. Attorney General Eric Holder declared that all federal agencies must interpret all federal civil rights laws related to sex as protecting not just sexual preference, but also sexual identity, including gay, lesbian, bisexual, transgender and queer/questioning (GLBTQ). The DOE’s Office for Civil Rights (OCR) has also investigated allegations of sexual harassment of transgender students since 2011. In those investigations, OCR threatened the loss of federal funds if those school districts did not take actions designed to protect transgender students, resulting in extensive resolution agreements. Litigation related to transgender students’ rights is also making its way through many states.
The guidance, at its most basic level, stated that Title IX’s prohibition against discrimination on the basis of sex must also be interpreted to include a student’s gender identity. Therefore, schools were directed that they could not treat transgender students any differently than they treat other students with the same gender identity. This requirement covered: safe and non-discriminatory environments; student records, and use of student names and pronouns; dress codes; restrooms and locker rooms; athletics; single-sex class and single-sex schools; and housing and overnight accommodations.
The guidance stated that there is no medical diagnosis or treatment program prerequisite that may be required before a school accepts a student’s declaration of sexual identity. The guidance also emphasized protection of the privacy of the educational records of transgender students. The state of Texas, along with 11 other states, sued and obtained an injunction against enforcement of the guidance in 2016. With the dawning of a new presidential administration, the 2016 guidance was withdrawn on Feb. 22, 2017. U.S. Secretary of Education Betsy DeVos cited the litigation involving transgender students as one of the reasons for withdrawing the guidance.
The withdrawn guidance was not replaced with further guidances. Describing the analytical shift as no longer a civil rights question, but an educational and states’ rights question, the DOE allowed states and local school districts to establish their own policies. In rescinding the guidance, DeVos assured the public that OCR would continue to hear and investigate all discrimination claims and would continue to work to protect all students.
In Texas, the Legislature failed to pass the controversial “bathroom bill” designed to regulate which public school bathrooms transgender students could use. This leaves local school districts with the opportunity to make their own decisions in the best interests of their own students.
Certainly, it is every school district’s desire to protect and respect the rights of all students, including transgender students. How that is accomplished should be an individualized decision for each affected student, as each student’s situation and concerns may be different. We recommend that decisions should not be made globally or in a vacuum. Rather, it is our recommendation that decisions related to an individual student should be made based on a student’s gender expression, in face-to-face meetings with students and parents who have the opportunity to walk through the school buildings to replicate the student’s experience, in order to make the best and safest decisions for all students.
Lynn Rossi Scott is a shareholder in the law firm of Brackett & Ellis PC in Fort Worth.